Legal aid

The rising cost of justice

And, for once, it's not the lawyers' fault

DISLIKE lawyers? Here's grist to the mill. Of every five pounds gobbled up by the legal profession in England and Wales, one comes directly from the taxpayer. Preliminary figures from the Department for Constitutional Affairs suggest that the cost of the legal-aid system in England and Wales has risen by 25% in the past three years, to over £2 billion ($3.6 billion). That is more than any other country in Europe. If the criminal courts are excluded, it is more even than America.

For any regime trying to control public spending, this would be a problem; and the British government is trying to make it a problem for the legal profession. Cost-cutting efforts now under way range from a fundamental review of legal aid, to the noisy pursuit of dishonest immigration solicitors, to attempts to rein in spending on complex criminal cases (which alone cost £329m last year). The latter measure has been rather too successful: barristers refused to sign up to the new system, and trials were delayed.

How has a traditionally scruffy area of law become so high-maintenance? It is tempting to point the finger at money-grubbing barristers and sloppy solicitors. But the real causes of spiralling costs are located outside the courtroom.

The first reason has to do with the growing supply of new law. It is the fate of the legal system, as Stephen Irwin, chairman of the Bar Council, puts it, “to be on the receiving end of clever ideas from elsewhere.” And there are a lot of fresh ideas about at the moment. The incorporation of European human rights law has made things more complex; so have well-meaning politicians. Innovations like the 2002 Proceeds of Crime Act, which enables prosecutors to pursue ill-gotten gains, have lengthened many trials, often to little effect. Mr Irwin was involved in one case where three hours of court time were spent pursuing £30.

The other thing on the increase is the volume of evidence, especially in serious criminal cases. Nick Wood, a practising barrister, says that the spread of technology has created exciting new ways of establishing guilt. Where fingerprints and eyewitnesses used to suffice, prosecutors now present reams of mobile-phone records, CCTV tapes and DNA evidence, all patiently explained by expert witnesses. Such evidence is especially useful for identifying accomplices, says Mr Wood: “so, instead of there being two defendants in a case, you might now have five.”

All this provides more clients for defence lawyers to represent, and more claims to rebut. And, since the threat of prison automatically opens the legal-aid coffers, it means a greater drain on public funds. Call it the price of justice.